| Ky. Ct. App. | Oct 20, 1910
Opinion of the Court by
Affirming.
This ordinary action was brought by the aupellees against 'the appellants to recover the possession of a tract of land and. damages for its detention.
The answer of the appellants was a traverse, and plea of ownership based upon adverse possession.
The case by agreement of the parties was transferred
Briefly stated, the facts are these: In 1871 and prior thereto one Michael McKinney owned and lived on a tract of land containing some 200 acres. In 1871 he purchased the tract now in controversy which adjoined his other land and had it conveyed to his minor son James McKinney by a deed which was duly recorded. In 1875 Michael McKinney sold to Wiley Reed all the land he owned, as well as that which had been conveyed to his son. Jamesy
The appellees claim the land in controversy as the vendees of James McKinney and through hint trace their title to the commonwealth; and the appellants claim as the vendees of Reed. It will thus be seen that appellees rely upon a paper title, while the appellants depend upon adverse possession as they can show no paper title back of Reed.
The evidence shows that Michael McKinney after the purchase and conveyance of it to his minor son James, claimed the land in controversy and exercised occasional acts of ownership over it, and in one corner of it erected a mill; but he never lived on or had actual possession of any part of the land except that upon which he erected the mill. After Reed obtained a conveyance from Michael McKinney, and in 1879, he sold about four acres of the land to which James McKinney had title, including the mill; and the part so sold is not in controversy in this action as the appellees do not assert title to it. Neither Reed nor his vendees, except the appellants who obtained title in 1896, ever lived on or had actual possession of any of the land in dispute after Reed sold the mill site. The land was never enclosed or its boundary marked, but there is evidence that McKinney and his vendees made occasional entries upon it for the purpose of cutting timber, and at one time while Michael McKinney claimed it a small portion of it was cleared and for probably a year two women lived on it. In short, the evidence for the appellees shows that although they have a perfect paper title to the land, they were never in the actual possession of any part of it, either by themselves or tenanfs. While the evidence for the appellants shows that although they have no paper title, the land has been claimed by them and their vendors for as much as thirty
The law applicable to this case, as we understand it, may be thus stated: The legal title carries with it the constructive possession of the land embraced by the title, and under this constructive possession the legal title owner may hold the land, without ever taking actual possession of any part of it, against any other person who obtains a junior title to it without following it up by actual possession. SoUhat, in this case the appellees by virtue of their paper title had at all times the constructive possession of the land in dispute, and this constructive possession could not be disturbed by the appellants or their vendors who had the junior title unless they took actual possession of the land, to which appellees had the senior title. The mere fact that Michael McKinney and his vendees lived on adjoining land and asserted claim to the land in controversy, and made occasional entries thereon to cut timber, did not have the effect of putting them in the adverse possession of it, so as to enable them to rely on adverse possession as a defense to a recovery by the legal title holder. If Michael McKinney or his vendees had actually settled on or taken actual possession of the land in dispute, or any part thereof, and remained in the actual possession thereof, continuously for fifteen years, claiming to own and hold adversely the whole tract to a well defined boundary, then their actual possession during this time, although it may have been to only a part of the land, would have extended to the whole of the land and have been sufficient to defeat upon the ground of adverse possession a recovery by the appellees. But, as we have seen, there was no actual possession of this land, or any part thereof, for fifteen years by Michael McKinney or any of his vendees. The erection of the mill upon this land by Michael McKinney started his title to adverse possession,. and if the land upon which the mill stood had been retained by Reed and his vendees‘for as much as fifteen 3mars, this together with the adverse claim of the whole tract to a well defined boundary would have been such actual possession of the land as would enable them to hold it against the senior title. But the land upon which the mill stood
In Brown v. Wallace, 116 S. W. 763, Brown occupied almost exactly the position that appellants hold in this case, and Wallace as the senior title holder under the Flynn patent was in the same position as the appellees here. The facts in the two cases are almost identical and the court in deciding in favor of Wallace, used, the following language, which is pertinent to a decision of this case:
“In order to defeat appellee’s (Wallace) title and constructive possession under and by virtue of the elder or Flynn patent, it was necessary for appellant (Brown) to prove actual adverse and continuous possession on the part of himself a.nd vendors within the lap of the patents for as much as fifteen years before the institution of this action. This he did not do.”
Perceiving no error, the judgment of the lower court js affirmed.